Appeal No. 95-4857
Application 08/101,000
As for the showing in Fig. 4 of Johansen, layer 11'
is shown as having a smaller thickness than layer 12, and the
drawing is assumed to show proportions of the parts it pur-
ports to delineate. Ex parte Hill, 169 USPQ 437, 438 (Bd.
App. 1970). We nevertheless do not regard Fig. 4 as sugges-
tive of appel- lants' claimed range, because the ratio of the
thickness of Johansen's layers 11' and 12 is approximately
1:3, which is considerably smaller than appellants' minimum
claimed ratio of 1:10.4
In the present case, the structure claimed by appel-
lants differs from that disclosed in the prior art in that
particular ranges of thickness and thickness ratio are re-
cited. In such a situation, appellants must show that the
claimed ranges are critical, see In re Woodruff, 919 F.2d
1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990), and we
consider that they have done so. Appellants' experimental
data cannot be characterized as the optimization of a result
effective variable (In re Boesch) or the discovery of optimum
4We suggest that appellants' Fig. 1 be amended so that
the thickness ratio of layers 1 and 2 (which now appears to be
about 1:2) more closely approximates the claimed range.
5
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